R v Ferris-Bromley
[2016] NZHC 772
•22 April 2016
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2015-054-794 [2016] NZHC 772
THE QUEEN
v
JESSE JOHN FERRIS-BROMLEY
Hearing: 22 April 2016 Counsel:
B D Vanderkolk and E M FitzHerbert for Crown
R B Crowley and L A Scott for DefendantSentence:
22 April 2016
SENTENCING NOTES OF CLIFFORD J
Introduction
[1] Mr Ferris-Bromley, you appear for sentencing today having pleaded guilty to the manslaughter of Virginia Rose Ford on 13 March 2015 at Palmerston North. That offence carries a maximum penalty of life imprisonment. You have also pleaded guilty to two charges of causing Ms Ford grievous bodily harm with intent to injure, in the period leading up to her death. The maximum penalty for each of those two charges is seven years’ imprisonment.
[2] Mr Ferris-Bromley, today you are 23 years old. At the date of her death, Ms Ford was only 20 years old. At the time you were both students at Massey University, living together in a flat. You had been in a relationship for approximately two years. It is now clear that you sought to dominate and control Ms Ford during
that relationship. You had, particularly in the period leading up to her death, become
R v FERRIS-BROMLEY [2016] NZHC 772 [22 April 2016]
increasingly violent to her. That violence culminated on 13 March last year. Ms
Ford died from a beating you gave her that day.
[3] You were originally charged with her murder. The Crown subsequently concluded that, in all the circumstances, a charge of manslaughter should be laid in replacement for that charge of murder. You pleaded guilty to manslaughter, and to the two grievous bodily harm charges, at that point.
[4] I say at the outset of these sentencing remarks that the events which have brought you and your family, and Ms Ford, her family and friends, to this courtroom today are a tragedy for all concerned.
[5] Pauline and John Ford have lost their only daughter in horrible circumstances. The fact of that loss, and those circumstances, will be with them forever. It is a parent’s greatest fear that they might have to bury their child. How much worse that must be when that death has been a violent and senseless one. Ms Ford’s wider family has also lost a precious family member. It is my job to sentence Mr Ferris-Bromley today according to law. The law does the best it can to respond to human tragedies, such as this. But we all know the law cannot do that in a way that adequately addresses the sadness and harm such events cause.
[6] I also acknowledge the tragedy for Mr Ferris-Bromley’s family. But, at least, Mr Ferris-Bromley, your family still have you: they have said they will support you. You are lucky to have that support. With it, you may be able to address the factors in your life and character that led you to these awful acts of violence.
Approach to sentencing
[7] In order to decide your sentence I must first set what is called a starting point. That is the sentence that responds to what you did, to the criminality of your actions. I then have to adjust that starting point, that is, increase it or reduce it, by reference to factors relating to you personally, and to your life to date. Finally, I am to give you credit for the fact that you have pleaded guilty to the charges you face.
[8] I will first record the factual basis upon which I am to sentence you. The Court has heard much of that this morning already, through the victim impact statements that have been read and submissions the lawyers have made. It is necessary for me, however, to formally record those matters, which I now do. I do so on the basis of the statement of facts which, Mr Ferris-Bromley, you accepted when you entered your guilty pleas.
Facts
[9] Mr Ferris-Bromley, you and Ms Ford moved together to Palmerston North in November 2014. By then you had been in a relationship for about 18 months. During that time you had lived together with both Ms Ford’s parents and with your parents in Australia.
[10] As Ms Ford’s relationship with you progressed, she increasingly withdrew from contact with her family and friends. Her parents visited you both in Palmerston North in January 2015. They say you made it clear to them they were not welcome. Ms Ford was, her parents found, particularly distant during that visit. Her behaviour left them in tears.
[11] The events of 13 March that led to Ms Ford’s death can be briefly described. Ms Ford returned to your flat late in the afternoon, after her lectures had finished. As you described it to your probation officer who prepared your pre-sentence report, you then argued about “something pathetic relating to [your] dinner”. The situation escalated. You were angered, you say, because Ms Ford said things to you that she did not believe in order to please you. That behaviour would be consistent with your dominant and controlling relationship with her. You became violent. You pulled her from the bed, and threw her to the floor. You punched her around the head and back a number of times. You struck her in the area of her abdomen with great force. Ms Ford lost consciousness as a result. She was bleeding from her nose and eyes. You wiped blood from her face with a wet towel, but you did not ring for help.
[12] At around 10.00 pm, Ms Ford stopped breathing. When you saw that, you called the ambulance on 111. That call was logged at 10.06 pm. You told the emergency operator that you had assaulted your partner and that she was not
breathing. The emergency operator instructed you on CPR. When the ambulance arrived they carried on CPR. They were unable to revive Ms Ford and she was pronounced dead, at your flat, at 10.59 pm that evening.
[13] When the ambulance staff arrived, you left the room where Ms Ford was lying. You told those attending that she had been unconscious for approximately 45 minutes, and that you had assaulted her. You were taken to the Palmerston North Police Station, interviewed and arrested.
[14] In the course of their inquiries, the police found two lists describing various ways in which Ms Ford could improve her relationship with you. You acknowledge preparing those lists. They were things such as:
· Stop and think about what Jesse says when he talks
·Tell Jesse the truth not what I think he wants to hear or what I want him to believe
· Sort out and admit mistakes before they escalate
· Listen to Jesse
· Don’t forget
· Practice answering straight away but stop and don’t keep blurting
out other stuff
[15] Those lists provide chilling confirmation of your control and dominance of
Ms Ford.
[16] A post-mortem was carried out on Ms Ford a day later. That examination showed that Ms Ford had suffered injuries from at least three separate, and recent, events.
[17] As a result of the violence you inflicted on her before she became unconscious, Ms Ford had suffered a traumatic rupture of part of the duodenum: as a result gas and liquid had entered the abdomen, causing the peritonitis, the inflammation, which was the direct cause of her death. She had also suffered a, probably non-fatal, acute subdural haemorrhage, which is a haemorrhage in the
brain, and bleeding and swelling of the underlying soft tissue of the scalp. A
traumatic tear in the lower part of her right kidney was also found.
[18] Other injuries were found that could have been associated with the violence that day, or may have been several days old. These included injuries indicating a battering assault with many blows to the front and both sides of the head. There was extensive bruising to other parts of Ms Ford’s body – the pathologist reported no fewer than 55 bruises to her front, back and arms. There was a tearing injury to a major nerve track deep within the brain. There was bruising to the eye sockets (black eyes), that showed evidence of ageing.
[19] Finally, the pathologist noted extensive rib fractures on both sides of the chest. The extent of healing indicated that those injuries had been caused no less than two weeks previously. They would have caused severe chest and back pain at the time.
[20] The pathologist reported that the traumatic rupture of Ms Ford’s duodenum was an uncommon condition. It was usually seen in road vehicle crash victims or unusual falls. Prompt treatment would have had a very high likelihood of preventing death. The previous fatal cases the pathologist had observed had all been in battered infants. Great force is required to cause such an injury. An unanticipated, and very violent, punch to the upper abdomen could do so.
[21] As the statement of facts records, the pathologist’s report is consistent with Ms Ford on 6 March 2015 having purchased bruise cream at a local pharmacy and a quantity of concealing makeup from a local department store. A salesperson at the pharmacy described Ms Ford as wearing large sunglasses on the day and that, although she had a considerable amount of makeup on, the salesperson could still see bruising under both of her eyes.
[22] The charge of manslaughter you have pleaded guilty to reflects the violence you committed against Ms Ford on 13 March.
[23] The first charge of wounding with intent to cause grievous bodily harm, between 13 February and 12 March, reflects your violent assault which fractured Ms Ford’s ribs.
[24] The second charge of wounding with intent to cause of grievous bodily harm, between 8 March and 12 March, reflects the battering assault injuries to the head and elsewhere you inflicted on Ms Ford in the days immediately prior to 13 March.
[25] To your probation officer you acknowledged that the violence from you to Ms Ford had commenced only a couple of months after you arrived in Palmerston North.
Reports
[26] I have received a number of reports to assist me with this sentencing exercise. In particular, the Department of Corrections has provided the usual pre-sentence report. There is also a report prepared by a psychiatric doctor who interviewed you. I have received a variety of letters written to the Court on your behalf by members of your family and others.
[27] We have all heard the victim impact statements read in Court today. Other
members of Ms Ford’s family have also provided victim impact statements.
[28] I have considered all of that material carefully and will refer to it as appropriate.
Starting point sentence
[29] I now turn to the question of the starting point sentence. Manslaughter can occur in a wide range of circumstances. To set a starting point sentence it is necessary to take guidance from sentences imposed for similar offending. As you have all heard, my attention has been drawn to a number of Court of Appeal decisions dealing with violent assaults in a domestic situation that led to death and manslaughter convictions. I have also been referred to guidance from the Court of
Appeal, in a case called R v Taueki.1 That provides guidance on grievous bodily harm offending where, of course, death does not occur. Sentences for such offending can, nevertheless, also be used for guidance in this area.
[30] By reference to those cases, and to the principles of sentencing more generally, the Crown submits that a 10 year sentence of imprisonment is required as a starting point. For you, Mr Crowley’s submission is that starting point should be nine years’ imprisonment.
[31] The Court of Appeal decisions of R v Ruru,2 Hetherington v R3 and R v Kengike4 from 2001, 2002 and 2008 respectively, all concern sentences for manslaughter following incidents of domestic violence.
[32] In Ruru, where death followed an incident of moderate violence and was contributed to by an inherent weakness of the victim, a starting point sentence of eight years was upheld. The Court of Appeal noted it did not regard eight years as at the top of the range of sentences for manslaughter involving domestic violence in the context of repetitive conduct.
[33] In Hetherington, following trial, a sentence of nine years’ imprisonment was imposed. The Court of Appeal upheld that sentence. Death followed an assault on the victim which, in the opinion of the pathologist, involved a blunt object, and possibly a punch, a kick or a fall. In upholding that sentence, the Court of Appeal also took account of the fact that, one year previously, the accused had committed a similar serious assault on his partner for which he had been sentenced to nine months’ imprisonment. He had only been released for a short time, and was on parole, when he offended again.
[34] In Kengike, after trial, the trial Judge imposed a 10 year sentence based on a
12 and a half year starting point. The circumstances in which the victim died were not entirely clear. She was discovered in a deeply unconscious state and later died.
1 R v Taueki [2005] 3 NZLR 372.
2 R v Ruru CA371/01, 12 February 2002.
3 Hetherington v R CA28/02, 20 June 2002.
4 R v Kengike [2008] NZCA 32.
Her partner, the accused, had left her in that state. Her injuries included a boot print on her abdomen, a fractured eye socket and soft tissue injuries around the neck. By reference to its earlier decisions in Ruru and Hetherington, the Court of Appeal concluded that the 12 and a half year starting point was too high. A starting point of
10 years would have been justified.
[35] As can be seen, those cases support the starting points advocated by both the Crown and Mr Crowley. The 2010 decision of the Court of Appeal in R v Tai is also informative.5 Tai considered the relationship between manslaughter sentences and sentences for grievous bodily harm offending. Taueki identifies what are called aggravating factors and ascribes sentencing bans by reference to those factors amongst other things.
[36] In my view, there are four Taueki aggravating factors here. They are extreme violence, unprovoked; the most serious injury of all, death; attack to the head; and a vulnerable victim. Ms Ford, in my view, is to be regarded as being particularly vulnerable given the long period of controlling and dominating behaviour she had been subject to.
[37] In terms of the adapted guidelines for the lesser charges, there are, again, the same aggravating factors. On a Taueki analysis, that would place this offending, in my view, at the upper end of the five to 10 year range of band two.
[38] It is always appropriate, when sentencing, to stand back and consider the offending in the round, as the Court of Appeal in Taueki recognises. The approach taken on sentence appeals when the Court stands back and looks at the end sentence in the round, also confirms that consideration.
[39] Mr Ferris-Bromley, your offending against Ms Ford was particularly sinister. You subjected her to very serious violence over what would appear to have been a period of at least a month prior to her death. The pathologist spoke of the severe pain that fractured ribs would have caused. The beating of the head and upper body,
and the wounds caused thereby, speak for themselves. Finally, there can be little
5 R v Tai [2010] NZCA 598.
doubt as to the extremity of the violence you inflicted on Ms Ford on the evening she died.
[40] In my view here, a starting point higher than 10 years is called for. I have listened carefully to your submissions, Mr Crowley, but I am persuaded in this case for these reasons that it is. In my view, a nine year starting point is justified by the offending on 13 March 2015 by itself. I think a two year uplift is justified by the earlier violence offending. I therefore set a starting point sentence of 11 years’ imprisonment. I think the severity of the other violence and, in particular, the cracked ribs and the pathologist’s description of the pain and suffering that would have occurred, justifies that position.
[41] I now turn to factors personal to you (before I take account of your guilty plea) which might lead me to increase or reduce that starting point sentence.
[42] The pre-sentence materials do not indicate specific mitigating factors other than ones that are obvious on the face of things. In particular, the psychiatric report (prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act
2003) concluded there was no evidence mental illness played a significant part in your offending, and that you do not display any signs of mental illness.
[43] Given your life up until the time you met Ms Ford, your offending was out of character. No one, I think, can be sure why you acted in the way you did.
[44] On your behalf, Mr Crowley points to your relative youth, and to the fact that
– before these events – you had no record of offending at all. Mr Crowley also points to the remorse you have shown, in particular during the restorative justice conference that you participated in with Ms Ford’s parents.
[45] With a discount of 10 per cent on account of those factors, and taking account of your guilty plea, Mr Crowley’s submission was that an end sentence of no more than seven years’ imprisonment should be imposed.
[46] The Crown recognises the fact you have no previous convictions, and are relatively young. In the circumstances of this offending, however, the Crown submits that there should be no discount on account of those factors. It recognises that discount is available to you on account of your remorse, and your guilty plea. It submits that in these circumstances the full 25 per cent discount for remorse, as reflected in a guilty plea, is appropriate.
[47] I first consider your youth and your previous record, and your remorse, including as shown by your participation in that restorative justice process. I accept that your remorse is genuine. I also acknowledge your relatively young age and the fact that up until these events, you had no previous criminal history. After very careful consideration, I do not think a reduction on account of your youth and previous character would, here, be appropriate. In part, I say that because Ms Ford was also very, very young and of unblemished good character. But, more significantly, in a legal sense, you offended against her over quite some period of time, that offending was serious, and cannot be described as youthful indiscretion. At 22 I do not consider youth to be a particular mitigating factor in these circumstances. Accordingly, I decline to give you a discount on account of your youth and previous good character. I accept, on the other hand, that your participation in the restorative justice process, albeit that it relied on the good will and strength of character of Ms Ford’s parents, does speak well of you. It confirms prospects of rehabilitation. It confirms the genuineness of your remorse. By my assessment, a reduction of six months to what would otherwise be your sentence recognises that factor.
[48] On that basis, and before taking account of your guilty plea, your end sentence would be 10 and a half years’ imprisonment.
[49] I have considered carefully the question of the guilty plea. I had this morning considered that perhaps 20 per cent would have been enough, given the strength of the Crown’s case. Having listened to the submissions, however, and I accept as Mr Crowley has submitted and the Crown acknowledges, that you accepted responsibility for this offending from the very start. You acknowledged that it was your fault. On that basis, I agree that a full 25 per cent discount for the guilty plea is
appropriate, noting that effectively in this case I have also recognised extraordinary remorse.
[50] That means an end sentence of eight years’ imprisonment.
[51] Both the Crown and defence acknowledge that, in order to sufficiently denounce your conduct, to deter you and others and to protect the community, a minimum period of imprisonment of 50 per cent of that sentence is required. I agree, and therefore impose that minimum period of imprisonment upon you. Mr Ferris- Bromley, you may stand.
[52] Mr Ferris-Bromley, and all in Court, I refer again to my opening remarks. No sentence this Court can impose can address the tragedy and the sadness of these events for Ms Ford’s family. Mrs Ford, you spoke movingly of your deep sense of regret that you were not able to do more. All parents feel like that but I think we all know that at certain times in the lives of our children we do as much as we can, but sometimes it just isn’t enough. And humanly, you should not feel blame for that. Mr Ferris-Bromley, these events are a tragedy for you and your family. But you, at least, have their support and the chance to address the causes of your offending and, over time, in your life to make amends to the Ford family and to society more generally for what you have done. I hope you will do that.
[53] Mr Ferris-Bromley, on the charge of the manslaughter of Ms Ford you are sentenced to eight years’ imprisonment. On each of the charges of grievous bodily harm you are sentenced to concurrent terms of two years’ imprisonment. You will serve a minimum term of 50 per cent of that eight years’ imprisonment.
[54] Mr Ferris-Bromley you may stand down.
Clifford J
Solicitors:
Crown Prosecutor, Palmerston North
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